ORDER
1. Heard Sri K. Prabhakar, learned Counsel for the petitioner and Sri V. Jayarani, learned Government Advocate for respondents 1 and 2 as well as Sri B. Seetharama Rao, learned Counsel for respondent 3.
2. This petition arises from the judgment and order dated 8-5-1998 passed by the Deputy Commissioner, Kolar District, dismissing the appeal of the transferee i.e., purchaser from the order dated 6-5-1994 passed by the Assistant Commissioner, Kolar, in proceedings under Section 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978. The Assistant Commissioner has declared the transfer deed or sale deed executed by the grantee dated 8-9-1976 to be null and void in view of Section 4(1) of the Act. After declaring the deed to be void, the Assistant Commissioner directed possession to be taken and then said land to be vested in the Government. The Appellate Authority affirmed this order. The land in question had been granted in favour of Muniyappa s/o Kadirappa by grant dated 21-7-1974. The land in dispute in the present case is Sy. No. 55/5 situated in Beedaganahalli Village, Nandi Hobli, Chickkaballapur Taluk, Kolar district. Along with this land, another survey number was also granted to another person. But for the purpose of present petition we are concerned with Sy. No. 55/5. Under the grant admittedly there was a condition of non-alienation, prohibiting alienation or transfer of granted land in favour of any person for a period of 15 years. The grantee sold 1 acre 20 guntas of land of this survey number in favour of Sri Chickka Thimmaiah vide sale deed dated 8-9-1976 out of the land granted to him. The Assistant Commissioner found that the transfer was made within a period of two years from the date of grant and so itwas in violation of non-alienation clause which debars the grantee from making transfer of any granted land for a period of 15 years from the date of grant. It may be mentioned here that the transferee i.e., the present writ petitioner also claims himself to be belonging to Scheduled Tribe. Feeling aggrieved from the order of the Assistant Commissioner dated 6-5-1994, the transferee preferred an appeal namely RA. SC. ST. 7/94-95. Really that appeal was filed by both the transferees. The learned Commissioner opined that there being absolute bar against transfer of granted land in favour of any person and there was no exception or exemption regarding transferee being a person belonging to Scheduled Caste or Scheduled Tribe, the transfer made by the grantees in favour of the petitioner and another person, even though they might be belonging to Scheduled Caste or Scheduled Tribe category, was in contravention of the terms of the grant, the Appellate Court affirmed the order of the Assistant Commissioner.
3. Feeling aggrieved from this order of the Deputy Commissioner, copy of which is annexed as Annexure-D to the writ petition, one of the appellants namely Chickkathimmaiah has come up before this Court by filing writ petition. The another appellant before the Appellate Court namely Sri Ramappa has not challenged the order of the Deputy Commissioner.
4. As mentioned earlier, I have heard the learned Counsel for the petitioner and the respondents.
5. The learned Counsel for the petitioner Sri K. Prabhakar contended that in view of the decision on this case and particularly Rule 29-A, the order of the Assistant Commissioner and the Appellate Court are bad in law. The learned Counsel made a reference to a decision of this Court in the case of V. Nanjappa v State of Karnataka and Others, decided by brother M.F. Saldanha, J., on December 9, 1997 and I summoned the copy of that judgment and I have also perused that. The learned Counsel contended on the basis of that decision that after coming into force of Rule 29-A as per 1974 Amendment Rules the transfer of the land by a grantee in favour of another person belonging to Scheduled Caste or Scheduled Tribe cannot be said to be hit by any law or prohibited by law and in this view of the matter, the learned Counsel contended that the petitioner being a person belonging to Scheduled Tribe, the transfer in his favour was illegally held to be null and void.
6. These contentions have hotly been contested on behalf of the Government as well as on behalf of the respondent. One thing more has been pointed out to me by the learned Counsel for the revision petitioner that really restoration of land has not been made in favour of the grantee or his heirs, but land has been vested in the Government. The learned Counsel for the respondents contended that really duty of the authority was to restore the land except in cases which are exemptedunder later part of clause (b) of Section 5(1) of the Act. Section 4 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 reads as under:--
'Section 4. Prohibition of transfer of granted lands:
(1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant or sub-section (2) shall be null and void and no right, title, or interest in such land shall be conveyed nor be deemed ever to have conveyed by such transfer.
(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.
(3) The provision of sub-sections (1) and (2) shall also apply to the sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other authority'.
7. A Division Bench of this Court in the case of Laxmamma v State of Karnataka and Others, has interpreted this section in paragraph 39 onwards as under:--
'39. Section 4 is the key section of the Act and, therefore, calls for a close analysis.
40. Section 4(1) of the Act declares that an alienation already made by a member of a Scheduled Caste or Scheduled Tribe in contravention of the terms of the grant or the law providing for such grant as null and void and that no right, title or interest shall pass to an alienee or the person claiming under him. The declaration made in Section 4(1) of the Act is given overriding effect over other laws, contracts and transactions.
41. Section 4(2) of the Act provides that transfer of granted lands from 1-1-1979 on which day the Act came into force shall be made with the permission of Government and not otherwise. Any transfer of granted lands made after 1-1-1979 without the previous permission of Government is void.
42. Section 4(3) of the Act provides that sub-sections (1) and (2) of Section 4 shall apply to a sale of any land in execution of a decree or order of a Civil Court or of any award or order of any other authority. Sub-section (3) invalidates sales made in execution of a decree of a Civil Court, an award or order of any authority also. A sale made in pursuance of a decree of a Civil Court or award or order of any other authority is not beyond the pale of the Act and its validity has to be adjudged with reference to the provisions made in the Act.
43. sub-section (1) of Section 5 provides for resumption by the Assistant Commissioner, of granted lands on an application by an interested person or on information in writing given by any person or suo motu, after holding an enquiry in which the person affected by resumption shall be given a reasonable opportunity of being heard. That sub-section further provides that such lands shall be restored to the original grantees or their legal heirs, that where it is not practicable to restore to them, suck lands shall vest in the State free from all encumbrances and that the Government may grant such lands to persons belonging to any Scheduled Castes, or Scheduled Tribes in accordance with the rules relating to grant of lands'.
In paragraph 47 their Lordships further observe as under:--
'47. In dealing with cases arising under the Act, if an Assistant Commissioner finds that an alienation is in contravention of the terms of the grant made or law providing for such grant made to a member of a Scheduled Caste or Scheduled Tribe, he is bound to give effect to the same by ignoring any decree or order made by a Civil Court, Tribunal or any other authority'.
8. It has been taken note of that Section 4 of the Act starts with non obstante clause and provides that, notwithstanding anything in any law, agreement, contract or instrument, any transfer made either before or after the commencement of the Act, if it is in contravention of either the terms of the grant of such land or is in contravention of law providing for such land or is in contravention of sub-section (2) of Section 4 itself, the same shall be null and void and no right, title or interest in such land shall be conveyed nor be deemed to have ever been conveyed by transfer of such land. The question raised by the learned Counsel for the petitioner has been completely answered by another earlier decision of this Court in the case of Siddalingaiah v State of Karnataka. Their Lordships have observed at page 2311 as under:--
'In view of the definition of the word 'transfer' even an exchange or gift of the granted land is prohibited. Secondly, there is no exemption provided for exempting any transaction between the two persons of the same community or two members of the same family except to the extent of partition among the members of a family or a testamentary disposition. Therefore, it is not possible to hold that, in case where the granted land made in favour of the Scheduled Caste person came to be transferred in favour of another relative of his own, the transfer could be exempted from applying Sections 4 and 5 for the purpose of giving relief under the Act. This is not the intendment of the legislation. I am unable to accept the submission of Sri Mudlappa. No other contention is raised'.
9. This case very clearly lays down that it is not possible to hold that in case the land granted in favour of Scheduled Caste person is or comes to be transferred in favour of another relative of his own or another Scheduled Caste person or Scheduled Tribe person, the transfer would be exempted from application of Sections 4 and 5. The decision referred to by the learned Counsel is not of any assistance. It only explains to provide what Rule 29-A was meant in 1974. It will be appropriate to observe that Rule 29-A of 1974 Amendment the rules is eliminate to certain extent the saving clause contained in Rule 40(2) of Land Grant Rules of 1968 and specially where it was provided that Repealing Clause in Rule 40(1) will not effect the operation or effect rule prevailing immediately before the commencement or enforcement of 1968 or terms of grants thereunder so far the past transactions or grants are concerned and the rights, privilege or obligation thereunder as concerned with reference to areas of Madras, Coorg etc., are concerned such as condition against alienation provided under Board of Revenue, Madras whereunder alienation of granted land by grantee in favour of any person, other than of Scheduled Caste or Scheduled Tribe, was prohibited and grants did also so provide. Such a rule or term of grants as above, irrespective of Rule 40 has been declared by Rule 29-A to have ceased to have operation and then its further effect appears to be to make general rule and terms of Rules of 1968 or 1969 which provided for complete bar against alienation of granted land for the period specified in Rules of 1968 and 1969 applicable. Rule 12 of Land Grant Rules of 1968 as well as Rule 9(1) of Rules of 1969 as operative in 1974 do contain the provision prohibiting the sale or alienation of granted land by grantee in favour of any person including one belonging to Scheduled Castes or Scheduled Tribes Community, for the period of fifteen years or so. The effect of Rule 29-A of 1974 (Amendment) is not to repeal nor to make ineffective the rules like Rule 12 of 1968 or Rule 9(1) of 1969 Rules which provide that the alienation of granted land in favour of any person is prohibited for fifteen years if the land had been granted as free of cost or for price less than full market value. The operation and effect of Rule 29-A is to make these rules or terms, which provided for prohibition against alienation of granted land in favour of persons other than persons belonging to Scheduled Castes or Scheduled Tribes and did permit or did not create prohibition against alienation of granted land to persons belonging to such castes or tribes ineffective as well to be inoperative. In the case of Laxmamma, supra, the Division Bench of this Court dealing with Rule 29-A observes in paras 67 to 72 as under:--
'67. Assuming that a granting authority had imposed a longer period than the one provided by law, it is difficult to hold that the condition in its entirety would be a void condition and cannot be enforced for the period it should have been lawfully imposed. What is objectionable is imposition of a longer period and not the condition itself. After all the condition to the extent it violates the law is clearly severable. On the foregoing discussion, we hold that any condition imposed to the extent it is in derogation of law,would be void and the conditions to the extent they are permitted by-law would be valid. We are of the view that Section 4 of the Act incorporates the same principle.
Re: Point No. III;
68. The uniform Land Revenue Act of 1964 (Karnataka Act 12 of 1964) enacted by the new State repealing the corresponding laws in the integrating areas, came into force on 1-4-1974. Under that Act, Government on 21-3-1968 framed the uniform Land Grant Rules called the Mysore Land Grant Rules of 1968 (hereinafter referred to as the 1968 Rules). Rule 40 of the 1968 Rules, corresponding to Section 6, General Clauses Act, repeals the Land Grant Rules that were in force in the integrating areas of the new State and saves previous operation of the Rules and the actions taken thereunder. As a result of the above, the conditions imposed in accordance with law in the erstwhile integrating areas and notably in the old Madras area to the effect that the lands should not be alienated except to members of SC/ST undoubtedly continued to be in force.
69. But, on 27-9-1974 Government framed Rule 29-A which reads thus:--
'29-A. Certain conditions not to apply.--Notwithstanding anything contained in Rule 40 of the Karnataka Land Grant Rules, 1969, the provisions of any rule (repealed by the said rule), that the land granted shall not be alienated except to the members of the Scheduled Castes or Scheduled Tribes shall, with effect from the commencement of the Karnataka Land Grant (Amendment) Rules, 1974 cease to operate'.
By virtue of clause (2) and Section 5 of the Karnataka General Clauses Act, this rule came into force on 17-10-1974, on which day the notification was first published in the Karnataka Gazette.
70. Rule 29-A which opens with a non obstante clause, declares that the provisions of any rules that provided that the land granted shall not be alienated except to the members of Scheduled Castes and Scheduled Tribes shall cease to operate from the date that rule comes into force. The language of the rule divorced from the context, provides for repealing the rules that provided for a prohibition of alienation only to members of SC/ST from 17-10-1974, though the corresponding Rules in that behalf had earlier been repealed by the 1968 rules itself.
71. Rule 29-A did not contemplate repealing a rule that had earlier been repealed, though that would be the textual meaning of that rule divorced from the context. A literal meaning defeating the purpose of framing the rule cannot be placed and the Court must endeavour to ascertain the real intendment and object of framing the rule and place a construction that would achieve the object of framing the rule. On such a construction, we are of the opinion that in framing Rule 29-A, Government has provided todelete the conditions imposed in the grant certificates to the effect that lands granted to members of SC/ST shall not be alienated to any other person other than the members of SC/ST from the date that rule came into force i.e., from 17-10-1974.
72. On the above discussion, we hold that on and from 17-10-1974, the condition imposed in the grant certificates issued to members of SC/ST to the effect that they shall not be alienated to persons other than members of SC/ST stands deleted and any alienation made thereafter to persons other than SC/ST would be valid'.
That in view of non obstante clause used in Section 4, the grant remained operative and terms of grant and the law in relation to grant had to be abided by the grantee including the one relating to bar against alienation as then operative in 1974 which did provide bar or prohibition against alienation under Rules of 1968 or Rules of 1969 vide Rule 12 of 1968 Rules or Rule 9(1) of Land Grant Rules, 1969. In the case of V. Nanjappa, supra, the attention of the Court was not invited to the provisions of Section 4(1) itself nor to the provisions of law Rules 12 of 1968 Rules or to Rule '9' of 1969 Rules laid down by the Division Bench's decision the case of Laxmamma, supra, in paragraphs 39 to 43 and 47 nor to observations contained in paras 67, 68 to 72 thereof. The learned Single Judge's attention was not invited to the earlier decision of this Court in the case of Siddalingaiah, supra.
10. On behalf of the State, the learned Government Counsel contended that it is discretionary power of the Government to pass the orders to restore the land to the original grantee or not to the original grantee or his heirs. I am unable to accept this contention. It is one of the well settled principle of law that when certain power is given and it has to be exercised under certain conditions, when those conditions are established, then it becomes the duty of the authority to exercise the power and to pass the order. Here Section 5(1) is material to be quoted and it reads as under:--
'Section 5. Resumption and restitution of granted lands.-
(1) Where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4 he may:
(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:
Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;
(b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Governmentmay grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accordance with the rules relating to grant of land'.
Section clearly reveals that once the Assistant Commissioner is satisfied that the transfer of the granted land is null and void under Section 4(1), then section says he may by order take possession of such land after evicting all persons in possession thereof in such a manner as may be prescribed. Proviso is not material for our purpose in the present case. Clause (b) provides for restoration of such land to the original grantee or his legal heir. Both the provisions are mandatory. It is not that once the Assistant Commissioner finds that transfer of the granted land is null and void it cannot be said that it is his discretion only but duty to order taking of possession from the person in possession under null and void deed and restore possession to the original grantee or his legal heir. When this is the position, same will apply to clause (b) also. Here, the word 'may' is used as an empowering provision. When empowering provision is there with conditions indicating what has to be done, then it becomes the duty of the authority concerned to exercise particular power in accordance with the empowering provision. It means once the Assistant Commissioner finds that transfer of granted land is null and void, he shall pass order for taking possession of that land after evicting the illegal transferee in possession and to restore such land to the original grantee or his legal heir. Exception is provided by the later part of clause (b) that where it is not reasonably practicable or possible to restore the land to the grantee or his legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. It means if the authority passes an order vesting the granted land in the Government, then he must indicate why it is not reasonably practicable to restore the land to the original grantee or his legal heir. Without recording any reason, neither the Assistant Commissioner nor the Appellate Authority could order that land stands vested with the Government. It will stand vested in the Government only when the Assistant Commissioner or the Appellate Authority records the reason that it is not reasonably practicable to restore the land to the original grantee or his legal heir then and then only it shall be vested or shall stand in the State Government, as per deeming clauses, otherwise the authority shall have to restore it to the original grantee or his legal heir.
Thus considered, the writ petition has to be dismissed subject to the following observations:--
The orders impugned passed by the Assistant Commissioner and the Deputy Commissioner are maintained with the modification namely with a direction that the land shall be restored to the original grantee as authorities have not recorded any finding as to why it is not reasonably practicable or possible to restore the land to the grantee or his legal heir. The authorities are directed to restore the land to the grantee.